When Migraines Make You Miss Work: Intermittent Leave under the Family Medical Leave Act

We have had a number of members of this site who have successfully applied for and been granted Intermittent Family Medical Leave Act (FMLA) status, allowing them to take unpaid time off from work due to their Migraines.  I'm writing this article to make you aware of the availability of the FMLA for intermittent leave for Migraines and other chronic illnesses, the requirements and some considerations in applying for and using the status.

Like many statutes, the FMLA started out for one purpose and has been added to and amended to cover more than it originally did. The FMLA passed in 1993 after many years of advocacy work to create a national law protecting the jobs of parents who took maternity or paternity leave, or who needed time off to care for a family member who was ill. In negotiating the statute and the regulations that apply it, it became clear to lawmakers that the same protections were needed for an employee's own serious medical condition.  As regulations were applied, employees with chronic medical conditions sought the status, and the regulations were extended to cover them.

The FMLA applies only to employers of 50 or more employees, and entitles any employee who has worked for an employer for 12 months, to have up to 12 weeks unpaid leave in any calendar year to care for their own or a family member's medical need.  How this works if you have a chronic condition like Migraine is that you can apply for intermittent FMLA status, entitling you to take leave when you need it, for up to the equivalent of 12 weeks a year. So it may be that you would use your FMLA status to take 2 or 3 days off a month, as needed when you had a Migraine attack.

To qualify for the leave, you must give your employer notice of your need for the leave, together with medical documentation. The more documentation you can provide, the better.  It is up to your employer to decide whether you are eligible for the leave, though most employers are unlikely to deny a claim with proper medical backing.  For Migraines, you would need your doctor to certify that you are unable to work when you experience a Migraine attack, approximately how many days leave you are likely to need in a typical month, and that this is an ongoing, chronic condition.  Your employer can send you for a second opinion, at their cost.  The Department of Labor provides a useful set of FMLA FAQs.

FMLA is an important tool to enable those of us with chronic conditions to keep working while caring for our health. It is not a silver bullet for our employment problems, however.  There are drawbacks.  It is important to remember that it is unpaid leave.  Your employer can, if they wish, require you to use up your vacation and paid sick time before you use FMLA time.  While this may be better for your wallet, it can have the effect of denying you any time off unless you are sick.  You must give your employer as much notice as possible when you are going to use your intermittent leave time.  Those of us with Migraine disease all know that sometimes Migraines are sudden, but if there are warning signs and you are aware that you will need to use the leave, give as much notice as you can.  Your employer can require you to have your need for the leave recertified by a doctor, at your cost, as often as every thirty days.